The opinion of the court was delivered by: HAROLD BAER, JR., District Judge
On February 20, 1997, Plaintiff, Marc Boyce ("Boyce"), and
Defendant, Soundview Technology Group, Inc. ("Soundview"), signed
a consulting agreement that granted Boyce the right to purchase
800,000 shares of Wit Capital Group Inc. ("Wit") common stock at
a price of $1 per share. (Tr. 833:1 6).*fn1 The consulting
agreement expressly stated that "the stock option grant may be
exercised within one year if my [Boyce] employment services
and/or consulting relationship with the company terminates
completely." (Tr. 833:6 10). The consulting agreement also
stated that "a copy of the incentive stock option agreement will
be provided after signing the final agreement and the
term/expiration date of the option grant will be the standard 10
years." (Tr. 833:10 13).
Six months later, in October 1997, Boyce received an internal
Wit memorandum enclosing a copy of a Wit Capital incentive stock
option agreement dated February 10, 1997 bearing Boyce's name.
The option agreement provided that "in the event that Boyce was
terminated for cause or if Boyce terminated his relationship with
Wit for any reason whatsoever . . . the option may only be
exercised within one month after such termination." (Tr. 833:13
21). Boyce's employment terminated in May 1998.
On April 5, 1999, Soundview denied Boyce's attempt to exercise
his stock options. (Tr. 837:24 25). The focus of the trial was
to determine whether "the consulting agreement is the only
enforceable agreement, or instead, the incentive stock option
agreement controlled the timing of when Boyce could exercise his option." (Tr. 833:24 834:2). A
jury trial before me commenced on July 19, 2004 and concluded on
July 23, 2004. The jury found Soundview's refusal to allow Boyce
to exercise his options on April 5, 1999 was a breach of contract
and awarded Boyce $400,000. (Tr. 850:8 851:8).
On July 28, 2004, Boyce filed this motion for a new trial,
pursuant to Rule 59 of the Federal Rules of Civil Procedure,
limited to the issue of damages. In sum, Boyce argues that he is
entitled to a new trial, limited to the issue of damages,
because: (A) the Court precluded plaintiff's forward looking
evidence and improperly charged the jury regarding damages; (B)
the Court's "Wrongdoer Rule" instruction was legally incorrect;
and, (C) the Court improperly excluded evidence dated after April
The decision to grant a new trial is unwarranted "unless the
trial court is convinced that the jury has reached a seriously
erroneous result or that the verdict is a miscarriage of
justice." Munafo v. Metro. Transp. Auth., 03 Civ. 7831, 2004
WL 1878753, at *5 (2d Cir. Aug. 24, 2004) (emphasis added). A
motion for a new trial should only be granted in special
circumstances; for example, when the jury's verdict is
"egregious." DLC Mgt. Corp. v. Town of Hyde Park, 163 F.3d 124,
134 (2d Cir. 1998).
A. The Court Precluded Plaintiff's Forward Looking Evidence or
Improperly Charged the Jury Regarding Damages
It is uncontested by the parties involved in this case that any
damages for a breach of contract should put the non-breaching
party in the same economic position he would have been, but for
the alleged breach. (Tr. 840:8 19). It is also uncontested by
the parties that, in a breach of contract action, damages should
be calculated from the date of the breach, not some subsequent
time, and the parties agreed that any damages be determined as of
April 5, 1999. Boyce Opening Br. at 1, Boyce v. Soundview, 03
Civ. 2159 (Jul. 28, 2004); Soundview Br. at 5, Boyce v.
Soundview, 03 Civ. 2159 (Aug. 25, 2004).
Boyce, among other things, contests the Court's (1) refusal to
allow "forward looking" evidence and (2) refusal to follow Sharma v. Skaarup Ship Mgmt.
Corp., 916 F.2d 820 (2d Cir. 1990), and instruct the jury that
damage awards should be based upon what knowledgeable investors
anticipated the future conditions and performance would be at the
time of the breach.
1. Forward Looking Evidence
The Second Circuit has repeatedly rejected Boyce's desire to
engage in a hypothetical damage assessment of potential profits
favoring, instead, more reliable established facts. In Lucente
v. Int'l Bus. Mach. Corp., 310 F.3d 243 (2d Cir. 2002), for
example, the Second Circuit held that a district court "ignored
binding precedent" and rejected the district court's decision "to
employ a conversion measure of damages in breach of contract
cases," opting in favor of calculating damages at the time of the
breach. Id. at 262-263. Again, in Oscar Gruss & Son, Inc. v.
Hollander, 337 F.3d 196 (2d Cir. 2003), the Second Circuit held
that "damages for breach of contract should put the plaintiff in
the same economic position he would have ...